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Samsung Electronics Co. v. Infobridge Pte. Ltd.

Limited Email Distribution Might Be Sufficient to Prove “Printed Publication”

Samsung Electronics Co. v. Infobridge Pte. Ltd., __ F.3d __, 2019 WL 3047113 (Fed. Cir. July 12, 2019) (Newman, Schall, O’MALLEY) (PTAB) (3 of 5 stars)

Fed Cir vacates IPR decision that confirmed Infobridge’s claims. Infobridge’s patent relates to video encoding/decoding methods essential to H.265. The Fed Cir has jurisdiction to hear Samsung’s appeal. Infobridge’s patent is part of a pool that also contains Samsung-owned patents. Because Samsung (along with other licensors) stands to receive a proportionally larger share of royalties if Infobridge’s patent is invalidated, it faces the sort of “concrete and particularized” economic injury that Article III requires. Op. at 7–8.

The Board erred in determining that Samsung had failed to show that “Working Draft 4” (“WD4”) of the H.265 standard was not publicly accessible before the critical date. The opinion rejects on both waiver and substantive grounds Samsung’s argument that WD4 was publicly available because it was developed at public meetings, noting that the reference “was not created until after” one meeting, and that a second meeting was post-critical date. Op. at 11–12. The opinion also rejects Samsung’s argument that public accessibility was established by evidence that WD4 was uploaded to a certain web site, and describes how the evidence supported the Board’s finding that “a skilled artisan would not have been able to locate [WD4] . . . by exercising reasonable diligence” under SRI, 511 F.3d 1186 (Fed. Cir. 2008), and distinguished Jazz Pharmaceutical, 895 F.3d 1347 (Fed. Cir. 2018), and Voter Verified, 698 F.3d 1374 (Fed. Cir. 2012). The Board erred, however, in its treatment of Samsung’s evidence that WD4 was emailed to a certain listserv, and describes how a “limited distribution can make a work publicly accessible under certain circumstances.” Op. at 19. “Rather than requiring Samsung to prove that persons of ordinary skill actually received the listserv email, the Board should have considered whether Samsung’s evidence established that an ordinarily skilled artisan could have accessed the WD4 reference, after exercising reasonable diligence, based on the listserv email.” Id. at 20.

KEYWORDS: INTER PARTES REVIEW; PRINTED PUBLICATION; PUBLIC ACCESSIBILITY